The Constitutional Court found no 95 / 2017 Coll.
The Constitutional Court found of 14 February 2017 sp. zn.
Valid
95
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 28 / 16 on 14 February 2017 in plenary composed of the President of the Court of Pavel Rychetský and Judges Jaroslav Fenyk, Josef Fiala, Jan Filip, Jaromír Jirsy (Judge of the Rapporteur), Tomáš Lichovník, Jan Musil, Vladimir Sládeček, Radovan Sukánek, Kateřina Šimáčková, Vojtěho Šimíček, Milady Tomková and David Uhlíř, on the proposal of the Group of 21 Senators of the Senate of the Parliament of the Czech Republic, represented by Mgr. Martin Lukáš, a lawyer, with the Chamber of the Parliament of the Czech Republic, based in Prague 1, on the Government of the Czech Republic as a party to the proceedings and Government of the Czech Republic,
as follows:
The proposal to repeal the provisions of Sections 82, 84 and 123 (5) of Act No. 186 / 2016 Coll., on Gambling, is rejected.
Reasons
Application for annulment of the provisions of the law
1. By a proposal submitted on 31 August 2016 by a group of 21 senators of the Senate of the Parliament of the Czech Republic pursuant to Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, within the meaning of Article 87 (1) (a) of the Constitution of the Czech Republic (Constitutional Act No. 1 / 1993 Coll., the Constitution of the Czech Republic, as amended, hereinafter referred to as "the Constitution", the Constitutional Court seeks to repeal the provisions of Sections 82, 84 and 123 (5) of the Act No. 186 / 2016 Coll., on gambling.
2. The provisions of Sections 82 and 84 provide for the "blocking" of unauthorised Internet games: Internet providers in the Czech Republic are required to prevent access to the Internet pages listed in the list of unauthorized Internet games (blacklist), which it maintains, and the Ministry of Finance (hereinafter referred to as the "Ministry") is responsible for the registration of the Internet. The list shall include websites on which gambling is carried out, for which no authorisation has been granted or which have not been duly reported. In the administrative procedure for listing a participant (gambling operator or domain holder), the documents shall be delivered by a public decree and, if known, to his address. The service providers shall block access within 15 days of publication in the list available on the Ministry's website. Paragraph 123 (5) defines an administrative offence consisting of the fact that the connection provider does not take the necessary measures to prevent access to the pages on the list within the legal period and may be fined up to CZK 1 000 000.
3. The appellant considers the amendment to be inconsistent with the constitutional order; is indefinite, it interferes in the legal certainty of the addressees, freedom of expression and the right of information pursuant to Article 17 of the Charter of Fundamental Rights and Freedoms, as well as in the right to engage in business as enshrined in Article 26 of the Charter of Fundamental Rights and Freedoms (published under No 2 / 1993 Coll., as amended by the Constitutional Law No. 162 / 1998 Coll., hereinafter referred to as "the Charter '), contradicts the requirements of international treaties binding on the Czech Republic and European Union law. In support of his claims, the appellant attaches to the expert's assessment of 29. 8. 2016 No 1483 / 2016, prepared by Ing. Jan Fantou, a judicial expert, inter alia, in the fields of electronics, cybernetics and computing.
4. According to the appellant, the law is indeterminate in that it clearly does not define compulsory bodies - it does not define precisely the term "Internet connection provider '; in particular, it is not clear whether it applies only to entrepreneurs or to other persons who make the Internet available to end-users, such as restaurants, universities, municipalities or simple natural persons, which allow connection through the so-called hotspot. On the contrary, it does not apply (though it should) to the provision of connections from abroad, e.g. via satellite or within the internal networks of multinational groups. The modification is also unclear in terms of the term" website "- in practice, the term" website "is used, but it has a shifted meaning. It is not legally clear whether the domain address as a whole is to be blocked, or only the domain name of the second or lower order, or how the list is to be made available, to what extent the synergies of the connectivity providers will be required, and whether the pages containing advertising for illegal gambling will also be covered.
5. In addition to the indefinite notation, the appellant points to the ambiguities of the procedural regime - the blocking should, according to him, take place solely on the basis of a court order or a decision of a specialised body, e.g. the Czech Telecommunications Office. The law inadequately regulates the removal procedure from the list of unauthorised internet games and the obligation for the providers of the connection to make the page (again) available. The implementation of the standards will be linked to significant costs that may be liquidating, and in addition to gambling, legal content placed on the website should be blocked in many cases. Moreover, people with more advanced digital literacy will find ways to bypass the blockage, and the law should have defined in more detail the assumptions of responsibility and the liberal reasons.
6. The appellant sees the institute blocking unauthorised gambling on the Internet as a constitutionally inadmissible censorship carried out without adequate legal mandinels - an arbitrary body of executive power. The law interferes with the constitutional and international obligations of guaranteed freedom of expression and the right to information, while the provisions of Article 17 (4) of the Charter cannot be applied to the regulation, as they are not legitimate and necessary measures in a democratic society. The regulation is not capable of achieving the declared objectives, which should include guarantees of fundamental rights and freedoms.
Observation of (secondary) participants, replica of the applicant
7. The Chamber of Deputies of the Parliament of the Czech Republic focuses in its observations on the description of the legislative process. The draft Gambling Act was discussed as House Press No. 578, the petitioner was the Government of the Czech Republic, was approved on 13 April 2016, with 175 Members present voting in favour of draft 149 legislators, 2 opposed. The contested provisions have not been amended in any way against the government proposal. In the discussions in the Chamber of Deputies, attention was paid to the options considered by the Government, in particular to whether the decision to enter the list of unauthorised Internet games should be entrusted to the Ministry with a subsequent review of the courts in the administrative judiciary, or whether it should be decided solely by the court. There were doubts in the Chamber of Deputies about the concept of blocking - both from an idea point of view (censorship issue) and technical (adaptation efficiency). In the legislative process, the professional public was also involved - the representatives of the betting offices supported the possibility of blocking, as they consider avoiding access to the market for illegal operators to be a key problem. The Association for Internet Development opposed, in particular, the decision to block by the Ministry of Finance, which, on the contrary, highlighted the high costs and increase in the agenda of the courts, should decisions be entrusted directly to them, which would be at the expense of the rapid and efficient blocking of illegal games.
8. The Senate of the Parliament of the Czech Republic submitted observations on 12 October 2016. As regards the legislative process, it states that the draft Gambling Act was referred to him by the Chamber of Deputies on 2 May 2016 and was conducted under press number 256 for the 10th term of office of 2014- 2016. The Organising Committee ordered the draft bill to be discussed by the Committee on Economic, Agriculture and Transport as a guarantee committee and three other committees. Neither the Guarantee Committee nor the Committee on Territorial Development, Public Administration and the Environment have adopted any resolution on the proposal; The Constitutional Legal Committee and the Committee on Education, Science, Culture, Human Rights and Petitions recommended that the Senate approve the proposal as referred to by the Chamber of Deputies. Subsequently, at the 24th meeting of 26 May 2016, by Resolution 452, the Senate approved the proposal as referred to by the Chamber of Deputies. In voting No 48, of the 65 senators and senators present, 42 legislators voted in favour, no one opposed.
9. By order of 17 October 2016 No 1013, the Government of the Czech Republic approved its entry into proceedings within the meaning of Article 69 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, ("the Law on the Constitutional Court"). In its observations on 31 October 2016, it proposes to reject the application as an intervener; Refers to the argument of uncertainty about the concept of an Internet connection provider as it is commonly used in practice and an abstract approach is necessary due to the dynamics of information technology developments. The Government sees the providers of the connection as a subset of providers of information society services within the meaning of § 2 (a) and (d) of Act No. 480 / 2004 Coll., on certain services of the information society and on the amendment of certain laws (the Act on certain services of the information society), also points out their responsibility for the content of the information and § 3 to 6 of the same Act.
10. According to the Government, the contested regulation is to be interpreted strictly: Responsibility for an administrative offence applies solely to legal and business natural persons - entrepreneurs within the meaning of § 2 (1) (b) of Act No. 634 / 1992 Coll., on the protection of consumers who provide the Internet connection service as an object of their activity. In addition, it concerns only the original provider; on the contrary, liability is not given to the recipient (user) of the service, even if it is subsequently provided to other users. In Article 9 (3) of the Act on certain information society services, the regulation also applies to entities from other Member States of the Union that provide connection in the Czech Republic.
11. The Government further states that the concept of the website is generally used as a synonym of the website, including in other legislation, e.g. in § 7 of Act No. 90 / 2012 Coll., on Companies and Cooperatives (Act on Commercial Corporations), § 1830 of the Civil Code or § 195 (4) of Act No. 280 / 2009 Coll., Tax Code, as amended by Act No. 344 / 2013 Coll., ("the Tax Code"). It shall always be based on the specific address of the website as recorded on the list; the blocking will always be carried out at the level of the domain of such a order, in order to affect as little as possible the amount of additional (legal) content, and will relate exclusively to sites offering access to and not just advertising on illegal gambling. The entry on the list, as well as the deletion thereof, shall be decided in the administrative procedure and in the form of an administrative decision against which degradation is permitted. The obligation to block is then not based on the legal power of the decision, but only by publishing the address in the list, with an indication of the exact time of publication from which the legal period for blocking can be calculated for each website.
12. The Government underlines that the form of administrative procedure with the possibility of judicial review has been chosen after due consideration and in accordance with Union and international law. Given the unattainability of operators established abroad, it is precisely the connection providers who have the tools for automated monitoring of changes in the list, with which they are well acquainted as experts in the region, that can do the most effectively. The nature of objective liability is highlighted by the liberal reasons set out in Section 128 of the Gaming Act. It is up to the provider himself to choose the specific method of blocking in relation to efficiency and costs incurred; The law has no ambition to interfere with this election.
13. According to the Government, the contested institute does not fulfil the basic definition of censorship, nor does it interfere with freedom of expression and the right to information; where there are restrictions, this is done in accordance with Article 17 (4) of the Charter. Illicit gambling is a dangerous social phenomenon that adversely affects the lives of the individuals concerned, public health and threatens order and security. The provisions of the Regulation shall also be complied with in relation to the restriction of the right to engage in business, in accordance with the requirements of Article 26 (2) of the Charter and the freedom to provide services within the meaning of Article 52 (1) in conjunction with Article 62 of the Treaty on the Functioning of the European Union.
14. The Government, in its additional observations received on 9 December 2016, shall make comparisons with the procedures applied abroad as demonstrated in the communication of the Ministry of Finance with the competent authorities of the other Member States of the European Union or of the European Economic Area. From the Member States that have provided relevant data, there is legislation allowing the blocking of websites with unauthorised gambling by Belgium, Bulgaria, Denmark, Estonia, Cyprus, Lithuania, Latvia, Hungary, Portugal, Slovenia and Spain; it is in the legislative process in Slovakia and Poland. They also have a similar instrument in France, Italy, Romania and Greece. The Government also states that the powers of the administrative authorities to rule on blocking are laid down in the legal rules of Belgium, Estonia, Cyprus, Lithuania, Latvia, Hungary, Portugal and Spain; the amendments proposed in Poland and Slovakia also provide for this concept. On the contrary, it is solely in the jurisdiction of the court which decides on a proposal from the administrative authority that it entrusts the law of decision in Slovenia and other countries combine both procedures, such as Denmark or Bulgaria. The exclusively proposed legislation in Poland contains specific rules on how the connection providers are to block.
15. The Ombudsman, pursuant to Paragraph 69 (3) of the Law on the Constitutional Court, has stated that she does not exercise her right to intervene.
16. In a reply submitted on 14. 11. 2016, the appellant persists in its proposal and subsequently objects to interference in the protection of property rights pursuant to Article 11 (1) of the Charter. In addition to the claim in the proposal, the administrative deficit consists of the delivery of documents by a public decree. It stresses that obligations are imposed on the providers of the connection, even if the malpractice is actually committed by the operators of illegal gambling.
Derogation of the contested provisions
17. Paragraphs 82, 84 and 123 (5) of the Gaming Act read as follows:
Blocking of unauthorized internet games
(1) Internet providers on the territory of the Czech Republic are obliged to avoid access to the websites listed in the list of websites with unauthorised Internet games (hereinafter referred to as "the list of unauthorized Internet games').
(2) A website on which an online game is operated contrary to § 7 (2) (b) shall be entered on the list of unauthorised online games.
(3) The obligation referred to in paragraph 1 shall be fulfilled by internet connection providers within 15 days of the date of publication of the website in the list of unauthorised internet games.
List of unauthorised internet games
(1) The list of unauthorised Internet games is maintained and decided by the official ministry.
(2) The list of unauthorised internet games contains:
(a) the address of the website at which the online game is operated contrary to Article 7 (2) (b);
(b) a unique identifier of the payment account used to run an internet game in breach of Article 7 (2) (b);
(c) the date of registration and deletion of the particulars referred to in points (a) and (b).
(3) The Ministry shall immediately delete the website or payment account from the list of unauthorised internet games, if the reasons for their entry in that list are omitted.
(4) The Ministry shall publish on its website the data referred to in paragraph 2 (a) and (b) from the list of unauthorised internet games.
(5) In the proceedings referred to in paragraph 1, the party to the proceedings shall be served by a public order and the party to the proceedings of known residence or registered office shall also be informed.
(5) The provider of internet connection on the territory of the Czech Republic shall commit an administrative offence by not taking measures within the prescribed time limit to prevent access to the Internet pages pursuant to § 82. '
18. Paragraphs 82 and 84 contain Title II of Part Four of the Gaming Act governing remote access via the Internet. In Article 7 (2) (b) of the Gaming Act, an Internet game "for which no authorisation has been granted or which has not been duly announced under this Act 'shall be entered on the list of unauthorised online games (blacklist). Paragraph 123 of Title II of Part Eight of the Gaming Act reads" supervision and administrative offences'. For the violation of the law, paragraph 11 of the same provision "the fine shall be imposed up to CZK 1 000 000."
Active procedural legitimacy and management conditions
19. Under Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, the application for annulment of the Act or its individual provisions is entitled to be made by a group of at least 17 Senators. In accordance with Article 64 (5) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 320 / 2002 Coll., the Group of 21 Senators added a signature to it, to which each Senator individually confirmed that it was attached.
20. The proposal contains all the legal requirements required, it is not inadmissible within the meaning of Section 66 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., and there are no grounds for termination of the procedure under Section 67 of the same Act. The Constitutional Court decided on the application without ordering oral proceedings because it did not carry out the taking of evidence and it was not possible to expect further clarification of the case within the meaning of § 44 of the First Law on the Constitutional Court from the hearing.
Legislative procedure for the adoption of the contested provisions
21. The Constitutional Court in the Intentions § 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., examined whether the contested provisions of Sections 82, 84 and 123 (5) of the Gaming Act (the Gaming Act as a whole) had been adopted and issued within the limits of the Constitution established competence and in the prescribed manner. It concluded that nothing could be criticised in this respect. Moreover, the appellant, other parties and the intervener do not mention any deficits.
22. For the sake of clarity, the Constitutional Court refers to the course of the legislative process, as described in the statements of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic, and adds the following: The Government's bill on gambling was circulated to Members on 28 August 2015 as House Press No. 578 (7th term since 2013). The first reading took place on 30 September 2015, the proposal was then ordered to the Budget Committee as a guarantee, which discussed it on 13 January 2016 and 18 February 2016 and issued a resolution to the Members as prints No 578 / 1 and No 578 / 3; In addition, it was also discussed by the Committee on Public Administration and Regional Development, which issued a resolution to it on 5 February 2016 to Members as Press No 578 / 2. The second reading took place on 1 March 2016 and the amendments were processed as print No 578 / 4. The third reading took place on 13 April 2016 at the 44th meeting and the proposal was approved by the Chamber of Deputies by Resolution No 1155.
23. After approval by both chambers of Parliament, the Gaming Act was delivered to the President of the Republic on 1 June 2016 and signed on 7 June 2016. It was subsequently delivered for signature to the Prime Minister on 10 June 2016 and published in the Collection of Laws on 15 June 2016 - in the amount of 71 / 2016 at p. 2962 under No 186 / 2016 Coll. Paragraphs 86 to 89, 91 and 92, 97 to 100 and 109 to 112 came into force on the date of their publication, the remaining provisions - including those currently under attack - entered into force on 1 January 2017.
Meritorious review of the proposal
24. The Constitutional Court has concluded that the application is not justified.
25. The objective of the contested regulation can be described as follows: Unlike standard (stone) establishments, the operation of gambling on the Internet (generally) is significantly less controllable and more dangerous, already by joining Internet games in the absence of effective regulation from basically anywhere, children or pathological players can easily participate, the games take place faster and there are higher amounts. Illegal online gambling often escapes any taxation, both in the target country where it is offered and in the country where it is operated. By not being subject to regulation or taxation, they offer better rates (winnings), they are attractive to players and, moreover, they do not limit them to age, betting limits, etc. - this is to be avoided by the contested provisions.
26. Therefore, the states seem to choose the only effective (albeit not perfect) solution, namely blocking access to the Internet sites on which illegal gambling is offered. Gambling is carried out from a remote abroad, responsible persons are virtually unreachable (and untouchable), and therefore countries often proceed so that the obligation to block access to bad websites is imposed on providers of Internet connection, whose task is to effectively, but only with the effort and costs that can reasonably be required of them, to block access to illegal online gambling by their customers.
27. The Constitutional Court will raise those from the regulatory objectives of protecting the state's budgetary interests, avoiding tax evasion and money laundering. The objectives of the adjustment were also defined in the explanatory memorandum to the draft Gaming Act (House Press No. 578 / 0, 7th electoral term since 2013, special section, to Section 82, available at www.psp.cz, hereinafter "the explanatory memorandum '). It is stated here that" currently operates gambling via the Internet 8 companies authorised by the Ministry of Finance. The proposed legislation will allow legal market access to other companies from other European Union countries. This could at first sight increase competition for existing operators. Since foreign companies already operate on the Czech market, albeit illegally, the impact on existing companies should be rather positive, as market conditions in particular in the field of tax payments will be levelled. "The reason report refers to the opinions of experts who have quantified the annual tax loss as a result of the illegal online business of foreign gambling operators at CZK 600 million (according to the Supreme Audit Office) and CZK 716 million (analysis of KPMG Czech Republic, s. r. o., cf. the general section of Sections 3.3 and 3.6 of the explanatory memorandum).
Constitutional conformity of Internet games blocking
28. The Constitutional Court concluded that the contested provisions do not conflict with the constitutional order - neither § 82 and 84 of the Gaming Act, which contains the rules on the blocking of unauthorised Internet games, nor the subsequent provisions of § 123 (5) of the same law defining the administrative offence committed by the Internet connection provider by not taking the necessary measures to prevent access to the Internet sites on which gambling is operated.
29. The task of the Constitutional Court is solely a review of constitutionality and in this sense the institutes of blocking illegal gambling offered on the Internet will stand up. The Institute cannot be compared to the limits on restrictions on freedom of expression and the right to information under Article 17 (4) of the Charter, the right to do business within the meaning of Article 26 (2) of the Charter and the protection of property rights within the meaning of Article 11 (3) of the Charter. Owners are obliged not to be misused against the law and their performance must not endanger human health, which is what is happening in the case of the operation of unauthorised online gambling if they are freely accessible to children or persons registered in the register of natural persons excluded from participation in gambling within the meaning of Section 16 of the Gaming Act. Moreover, illegal gambling operators cannot bear witness to the protection of those constitutionally protected values, as it is an illegal activity that threatens a number of important interests of society, and is often linked to serious criminal activities. The purpose of the contested law is to protect social interests; it cannot be compared to the censorship of the Internet as a (systematic) control or restriction of the communication of information - a technical measure designed to prevent illegal activities and which must be used in such a way as to avoid interference with the legal content of the Internet. The blocking is carried out mainly in line with the budgetary interests ("for the sake of the fisco") and justified by the fight against money laundering (so-called predictive offence).
30. This does not change the obligation to take into account the constitutionally conformal interpretation and application of the Gaming Act in administrative proceedings for the entry of a specific website into the list of unauthorised gambling and, where appropriate, review proceedings before administrative courts. According to the Gambling Act, blocking is only possible to the extent necessary and without interference with other (legal) content of the Internet. In this context, the principle of subsidiarity applies to the decision-making activities of the Constitutional Court, restraint and minimisation of interference with the activities of other public authorities - if the contested provisions can be interpreted and applied in a constitutional manner, it is not appropriate to disturb them for conflict with constitutional order.
31. In this context, the continuity of the contested regulation to Article 252 of the Penal Code, which regulates the offence of wrongful gambling. While the institute of blocking illegal internet games represents the administrative branch of regulation (combating) of gambling and its purpose is primarily to effectively prevent access to them, the regulation of the Criminal Code provides for a subsequent penalty for such criminal activities, which applies both to natural persons and to legal persons in the Intentions of Act No. 418 / 2011 Coll., on the criminal liability of and proceedings against legal persons, as amended. In accordance with Section 252 (1) of the Criminal Code, as a criminal offence is committed by those who "organise, promote or mediate gambling ', even the sanction of an Internet connection provider who is actively involved in the dissemination of access to such a game is not excluded under that provision. The competent public authority should always consider whether a criminal complaint under Article 8 (1) of the Criminal Code is appropriate, in particular where there is intentional wrongdoing.
32. It does not consider the Constitutional Court or the design imposing an obligation to effectively avoid access to Internet sites with illegal gambling to internet connection providers, not to the game operators themselves. Illegal games are regularly offered from (remote) abroad, in many cases deliberately or even formally, precisely to make operators difficult to catch up with the state's control authorities. Therefore, the legislature ordered access to the malicious content of internet connection providers who can provide the most effective blocking while being available both for communication with the administrative authorities on the effective application of the law and for possible penalties for infringements. However, in relation to the operators of illegal gambling and, in particular, to the providers of the connection to which the responsibility for blocking access to them is de facto transferred, this must be a form of decision which is subject to due review in the administrative judiciary, which is also the case of the contested regulation as further developed.
33. For connection providers, the preconditions are for continuous (automated) monitoring of changes in the list of unauthorised internet games, the Ministry is obliged to provide them with effective support and synergies in this respect, which is also remembered by the explanatory report, which stresses that the list must be kept in electronic form and in a way that allows continuous remote access; the provider cannot be seen as being responsible for the illegal operation of gambling but, at the most, as a contribution to the unlawful situation (special part of the explanatory memorandum, to § 82). The implementation of the law should not be associated with a greater administrative burden on providers, since, after a certain settlement of the situation, blocking in the order of tens, at most hundreds of websites can be provisionally expected, over a longer period of time (in this context, the explanatory report indicates that a total of 12 and about 180 websites are blocked in Denmark). It will be up to individual providers to choose the most technically appropriate method of blocking.
34. The legislature did not step out of the constitutional framework of its activities or by defining the preconditions and conditions of the waiver of liability (liberation) as provided for in § 128 (1) and (3) of the Gaming Act. In its nature, it is an objective responsibility, but not absolute (for the result), with the fundamental liberal reason being to make all the effort that can be required of the connection provider (reasonably). Specific steps by the provider to prevent access to important sites, the difficulty of circumventing the block and the proportionality of costs are decisive for applying the liberal plea.
Decision-making by an administrative authority and judicial review
35. The Constitutional Court finds no conflict with the constitutional order, nor in that the law confers on administrative authorities the power to decide to include a specific website on the list of unauthorised gambling; This is the case in administrative proceedings - the resulting decision is primarily subject to standard review in the administrative judiciary. The form of an ordinary and two-stage administrative procedure followed by a judicial review is constitutionally consistent both in terms of the protection of the procedural rights of the parties concerned and in the light of ensuring proper interpretation and application of the law. A similar procedural procedure - an administrative procedure with a judicial review - applies in relation to a gambling operator or domain holder and to the listing of a website ("normal 'administrative procedure), and subsequently to an Internet connection provider and to his responsibility for the breach of obligations in order to avoid access to the listed sites (infringement proceedings, which are characterised by partially different procedural standards). The judicial review is sufficient to ensure the legality of the administrative procedure in implementing the law.
36. The chosen concept has better preconditions of efficiency due to enormous dynamics that are typical of the internet world and the development of gambling. By means of an administrative procedure, entry on the list can be decided more quickly and flexibly. From the point of view of compliance with the relevant procedural standards, the Constitutional Court does not see a substantial difference in whether the Ministry of Finance or another body of state administration, such as the Czech Telecommunications Office referred to by the applicant, decides in administrative proceedings. The important thing is that the blocking is decided by the administrative authority, which is given the appropriate expertise and personnel. In this context, the Ministry's decision-making is also appropriate because the listing and deletion of the list are directly linked to whether the necessary licence has been granted for gambling or whether the game has been properly reported - even these acts fall under the Ministry of Finance's gesture.
37. The explanatory memorandum deals with the comparison of the different variants of the decision-making on the entry of the website on the list of unauthorised gambling, which is the most appropriate assessment of the delegation of decision-making powers to the Ministry of Finance. It states that "a significant aspect in considering the implementation of blocking measures was the speed of reaction, given that illegal gambling providers can take advantage of a number of measures that limit the possibility of responding by state authorities or make it impossible... The choice of the solution, which is based on administrative procedure in the Ministry of Finance's gesture in this area, is not only effective in terms of the speed of implementation and updating, but also the least burdensome state budget, since it does not carry any additional costs for other authorities of the State" (general part, Subsection 2.9.4, ad "Variant 2: Internet blocking").
38. The conflict of law on gambling with constitutional order cannot cause even the absence of a detailed modification of the deletion from the list after the reasons for registration have ceased. Whether this will be without formality, by reversing the licence or announcing gambling in accordance with § 7 (2) (b) of the Gaming Act, or again in full administrative proceedings (as indicated by the Government), compliance with the requirement of § 84 (3) of the Gaming Act is essential, in particular, in order to ensure that the deletion takes place immediately after the reasons for registration have lapsed. Here too, administrative courts will be called upon to review the progress of the Ministry.
39. The Constitutional Court has also not forgotten the modification of the administrative procedure under Section 84 (5) of the Gaming Act to the participant (the operator of a website with an unauthorised gambling or domain holder, if different), the documents are served by a public decree, and if the administrative authorities know the address of the residence or registered office, they also note it. In this regard, too, account must be taken of the specific nature of the blocking of illegal gambling where speed and efficiency are determined.
40. If a person has a known address - both in the Czech Republic and abroad - he will learn about the administrative proceedings and the service of the document to his address, although legal effects will be linked to the publication of the decree. In this context, it is appropriate to appeal to the administrative authorities to be active in determining the addresses of the parties in force and to send them the documents immediately after the publication of the order; in particular, for data-box operators - which should be the primary way of communicating entrepreneurs with public authorities - this modification should not constitute a threat to procedural rights. In addition, the consistent practice of administrative authorities in service will be subject to review by administrative courts.
Comparison with European Union foreign and law
41. For the sake of completeness, the Constitutional Court states that the documents submitted to it in the proceedings clearly show that the institute of blocking access to Internet sites where illegal gambling is carried out is relatively common in the other Member States of the European Union or the European Economic Area of the European Union and the European Free Trade Association (with the exception of Switzerland). Without having to carry out a more detailed analysis (or even lead to evidence in this respect), based on the submission of participants and research carried out by the Constitutional Court's Analysis Department, it can be concluded that the blocking of websites with unauthorised gambling has been brought into the legal order of Belgium, Bulgaria, Denmark, Estonia, France, Italy, Latvia, Hungary, Portugal, Romania, Greece, Slovenia or Spain; in Slovakia and Poland it is in the legislative process.
42. On the contrary, the blockage is lacking in Croatia, Ireland, the Netherlands or the United Kingdom, for example, in other countries, because of the state monopoly on gambling (Finland, Sweden). In Germany, it is the subject of a so-called State Treaty between all Länder; in the earlier version of this source of law, the Institute was included but subsequently deleted, also in the light of doubts as to whether its implementation can be fairly transferred to the connection provider. In Austria, the block relates solely to infringements of intellectual property rights. In administrative proceedings, blocking is decided, for example, in Belgium, Estonia, Italy, Lithuania, Latvia, Hungary, Portugal or Spain; it is also to be implemented in Poland and Slovakia. On the contrary, only under the jurisdiction of the court which decides on a proposal from an administrative authority, the blocking is carried out in Slovenia. Both concepts combine legislation of Bulgaria, Denmark or France.
43. Regulation (EU) 2015 / 2120 of the European Parliament and of the Council of 25 November 2015 laying down measures relating to access to the open internet is in the European Union's right to block illegal content; in paragraph 13, the preamble identifies as permissible restrictions on access to the open Internet in cases covered by "generally applicable national measures, judicial decisions, decisions of public authorities with the appropriate powers, or other measures ensuring compliance with Union legislative acts or national legislation (for example, obligations to comply with judgments of courts or public authorities requiring the blocking of illegal content) '.
44. The closer arrangements include Article 3 of that Regulation. Specific procedures in the fight against illegal gambling leave the European Union to the Member States and concentrate on the related aspects of the freedom to provide services within the meaning of Article 56 et seq. Contracts on the Functioning of the European Union and the protection of players as consumers. They mainly address Commission Recommendation 2014 / 478 / EU of 14 July 2014 on principles for the protection of consumers and online gambling service players and for the prevention of online gambling by minors. Paragraph 5 of the preamble points to a lack of harmonisation at European Union level, with Member States being called upon to set themselves a policy on gambling and consumer protection standards. They may limit the cross-border provision of online gambling services on the basis of public interest objectives, but they must ensure that measures and public interest objectives are appropriate and necessary to promote them consistently and systematically. In paragraph 15 of the preamble, the Commission emphasises the provision of online information on gambling to prevent mental disorders, in particular to prevent minors from accessing gambling and to discourage consumers from using illegal offers. In paragraph 17, the preamble requires Member States to take effective action against online unauthorised gambling services; Article X then calls on Member States to establish regulatory authorities to monitor and effectively ensure compliance with national online gambling control measures.
45. The relevant standards also contain Directive 2000 / 31 / EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (the "Directive on electronic commerce"). Although gambling is excluded from its scope, its adaptation may be referred to in relation to the general responsibility of intermediary service providers for the transmission of information; in accordance with Article 12 (3) thereof, Member States are authorised to lay down in their laws the powers of judicial or administrative authorities to require the service provider to terminate or prevent the infringement. For the sake of completeness, it is also possible to refer to Article 11 of the Council of Europe Convention on Combating the Handling of Sport Competitions, which was approved on 9 July 2014 and is in the ratification process. In its view, the Contracting States are obliged to take the most appropriate means to combat illegal sports betting operators and to take appropriate measures, inter alia, to limit remote access (via the Internet).
46. The Court of Justice of the European Union expresses itself only in general terms to block illegal online games, but it is still clear that it accepts institutes similar to those introduced into Czech law. In Case C-42 / 07 Liga Portugal de Futebol Profissional (all the decisions referred to here are available at http: / / curia.europa.eu), it stated that the freedom to provide services does not prevent Portuguese legislation from offering gambling online to operators established in other Member States and providing similar services legally. The Court pointed out the specific nature of online gambling and identified restrictions in Portugal as justified by the fight against fraud and crime; Taking into account that the online gambling sector is not subject to harmonisation at Union level and that it carries different and increased risks compared to traditional markets (paragraphs 69, 70 and 72). In its judgment of 3 June 2010, Case C-203 / 08 Sporting Exchange, it even addressed the Dutch legislation, which underpins the organisation and promotion of gambling exclusively for the benefit of a single gambling operator and prohibits all others from offering such services via the Internet, including entities from other Member States.
47. The judgment of 27 March 2014, Case C-314 / 12 UPC Teletakel Wien, concerned the specific Austrian legislation on blocking websites with content infringing copyright, but its conclusions are also applicable to the present case. The Court has concluded here that the fundamental rights recognised by Union law do not prevent the provider of an Internet connection - in the case of Austria by an order issued by a court - from giving customers access to websites on which protection articles are made available online without the consent of rightholders. UPC Teletak Wien could thus be ordered to block its customers' access to websites on which the "downloaded" films produced by Constantine Film and Wega were illegally downloaded. In addition, the Court has explained that, when blocking, it is not possible to establish authoritatively what measures the connection provider is to take - this is only at the choice of the provider, which must also be able to waive liability if it proves that it has taken all the measures that can reasonably be requested of it and which do not unduly prevent access to other (legal) information.
Objection of uncertainty of the legislation
48. The appellant sees the unconstitutional nature of the law in that it does not properly define the terms "Internet connection provider" and "website." Moreover, according to him, it is not clear whether the domain address as a whole is to be blocked (so-called URL), or only the domain name of the second or lower order, as the list of unauthorised internet games is to be made available and to what extent the active synergies of connection providers will be required.
49. The contested regulation does not show such a degree of ambiguity or uncertainty that it would not meet the essential requirements of legal certainty and predictability of law as imposed by the constant case-law of the Constitutional Court - cf., for example, the findings of 13.5.2014 sp. zn. II. ÚS 3764 / 12 (N 91 / 73 SbNU 517), of 3.6.2009 sp. zn. I. ÚS 420 / 09 (N 131 / 53 SbNU 647), of 15.2.2007 sp. sp. zn. Pl. ÚS 77 / 06 (37 / 2007 Sb., N 30 / 44 SbNU 349), of 20.9.2006 sp. The role of the Constitutional Court is not to replace the activities of the competent public authorities and to give authoritative interpretations of the legal concepts of the Internet connection provider or website; no longer is called to anticipate the partial aspects of the application, for example at what level of domain name the website should be blocked or how a list of unauthorised games is to work, what synergies can be requested from connection providers or what method of blocking should be chosen.
50. The deficits of the adopted adjustment and the terms used clearly do not reach constitutional relevance. Moreover, it is wrong to think that the case-law will solve everything - the opposite is true: the more detailed the regulation is, the more room for obstruction and circumvention. In this context, it can also be emphasised how the contested provisions are interpreted by the Government (processor of the draft law) in its observations. The concept of an Internet connection provider is perceived as a sub-group (sub-category) of information society service providers within the meaning of § 2 (a) and (d) of the Information Society Services Act.
51. The extent of liability for administrative misconduct in order to avoid access to malicious Internet sites, the government itself applies strictly only to entrepreneurs within the meaning of § 2 (1) (b) of the Consumer Protection Act who provide the Internet connection service as an object of business. In other words, if a person is the recipient of an Internet connection service and the error occurred on the part of its supplier, he is already relieved of responsibility for the administrative offence, even if the connection (with deficit blocking of illegal gambling) would subsequently provide other users in the course of his business.
52. The blocking is intended exclusively to cover websites that allow access to illegal gambling, not, for example, those that contain only advertising for illegal gambling. With regard to foreign entities, the Government states that the responsibility for blocking access to illegal gambling in the Intentions Section 9 (3) of the Act on certain information society services also applies to foreign persons providing connections in the Czech Republic, including entities from other Member States of the European Union, e.g. via satellite or within the internal networks of multinational groups. The Constitutional Court adds that even if the legislation against foreign providers of connections is harder to enforce, it will only affect the minority user pool, since (for example) satellite connections are relatively expensive and are subject to internal control mechanisms through the networks of multinational companies used by their employees, which prevent gambling from being involved generally significantly more effectively than the State's supervisory activity.
53. Nor does the concept of a website contravene the constitutional order of uncertainty. In its observations, the Government materially equates the concept of a (more precise) website and points out that the links of the website are used, for example, by Section 7 of the Commercial Corporations Act, Section 1830 of the Civil Code or Section 195 (4) of the Tax Code. As to the doubts about the level of blocking, i.e. whether the domain name as a whole will be affected (e.g. www.hry.cz), or only the second or lower order (e.g. www.kagid.zabava.eu), this requirement cannot generally be defined; on the contrary, such a detailed adjustment would appear to be inoperable; According to the Government, the address of the domain order will be included on a case-by-case basis, which will correspond to the requirement to effectively prevent access to an illegal game while minimising interference with other (legal) content. However, the law does not remember other means of remote access to gambling than via the Internet, for example via mobile phone applications.
54. The lack of more detailed arrangements for the availability of the list, mandatory cooperation of providers or specific blocking methods is of no constitutional relevance. Moreover, as the Court of Justice of the European Union pointed out in the judgment of UPC Teletakel Wien, providers of connections must not be determined, but the choice of concrete and effective methods of blocking must be at their choice in terms of optimising efficiency and cost. In accordance with the requirements of the Court of Justice, the liberal reasons are also in Section 128 (1) of the Gaming Act.
Conclusion
55. On the basis of the above, the Constitutional Court concludes that the contested provisions of Sections 82, 84 and 123 (5) of the Gaming Act are not contrary to the constitutional law and do not give reasons for their annulment. The proposal is therefore not justified and the Constitutional Court rejected it pursuant to § 70 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found no 95 / 2017 Coll., on the application for annulment of certain provisions of Act No. 186 / 2016 Coll., on gambling |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 31.03.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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